Andrew McCarthy, whom I know slightly and respect for the work he did as a prosecutor in the U.S. Attorney’s Office for the Southern District of New York, has argued in these pages that the government was right to dismiss the charges against Gen. Michael Flynn because it “wouldn’t have a prayer of convicting Flynn at trial.” But McCarthy, as a pundit, contradicts what he undoubtedly knew as a prosecutor.
To recapitulate, in late December 2018 Flynn had a conversation with Russian Ambassador Sergei Kislyak, in which, according to news reports that Flynn has not disputed, he asked that Russia not escalate its response to sanctions imposed by the Obama administration in retaliation for Russian interference in our election. On Jan. 12, 2017, the Washington Post reported details of this conversation, and thereafter both then-Press Secretary Sean Spicer and Vice President Pence said publicly that Flynn had denied discussing sanctions with Kislyak. Flynn was interviewed by the FBI on Jan. 24 and falsely stated that he did not discuss sanctions with Kislyak — the basis for the false statement charge that McCarthy attacks.
It’s important to remember that Flynn chose to plead guilty to lying to avoid prosecution for more serious crimes, including acting as an undisclosed paid agent of foreign governments while he was working on President Trump’s campaign (and receiving classified briefings on its behalf), and that Flynn twice admitted his lies in open court. But McCarthy nonetheless advances several reasons why he believes there was insufficient evidence that Flynn lied. None holds water.
McCarthy first argues that there are “significant questions about whether inaccuracies in [Flynn’s] description of the Kislyak discussions were honest failures of recollection, not lies.” This is a shopworn argument by lying defendants, one which I am sure McCarthy confronted and rejected as a prosecutor. It is for a jury to resolve.
And whatever the merits of the “Oops, I forgot” defense might be in other cases, it is ludicrous in this case. First, the conversations with Kislyak happened less than a month before Flynn’s FBI interview. Second, Flynn was able to remember a significant amount of detail about the conversations — he just happened to forget the part about sanctions. Third, Flynn did not merely deny recollection of the conversation with Kislyak, but claimed he didn’t even know of the sanctions when he spoke to Kislyak. Fourth, immediately before he called Kislyak, Flynn had discussed with a Trump transition official what could be communicated to Kislyak about sanctions and, according to reports, raised the issue with Kislyak himself; it thus appears that sanctions were the main purpose of the call. And fifth, Flynn told the same lies previously to Spicer and Pence — as little as two weeks after the event — which surely would have focused his mind by the time the FBI interviewed him. Anyone not blinded by partisanship would find, on those facts, that Flynn remembered the call and lied about it.
Second, McCarthy relies upon the statements of the interviewing agents that they “believed [Flynn] was truthful, if forgetful.” The principal source of that assessment is former FBI agent Peter Strzok, who McCarthy claims has “monumental credibility problems” — but apparently only when Strzok incriminates Flynn. (I met Strzok professionally when I was in the government and found him credible.) The agents’ impressions, if admissible at all, would simply be one piece of evidence for the jury to weigh, and Strzok’s televised testimony before Congress suggests that he would be a formidable witness. In any event, what the agents said was that they didn’t see any physical indications that Flynn was lying, which could prove nothing more than that he was a skilled liar.
Third, McCarthy criticizes the conduct of the FBI agents, and in particular their failure to warn Flynn that lying to federal agents was a crime before interviewing him. Of course, the agents’ conduct has nothing to do with whether Flynn lied; by all accounts the interview, conducted in Flynn’s office, was relaxed and friendly and nothing prevented Flynn from telling the truth. And despite McCarthy’s suggestion that the failure to warn Flynn denied him due process, any prosecutor knows the law does not require warnings unless a defendant is in custody. The FBI often gives such warnings at the start of a non-custodial interview — but that practice is not invariant and not required by law.
Finally, McCarthy attacks the credibility of the two agents who conducted the interview, claiming that “the government’s entire case boils down to the testimony” of Strzok and another agent. I’ll assume that each of McCarthy’s criticisms is justified, though I don’t actually agree with many of them; were there a trial, some of that criticism would be admissible to impeach the agents’ credibility, and some probably would not be. As I said above, I think that Strzok would stand up well to cross-examination.
But, of course, that misses the point. The government frequently brings cases where the credibility of its witnesses can be attacked. I’m sure that McCarthy had the discomfiting experience of seeing experienced defense counsel effectively cross-examine a key witness, as have I. But he also knows that prosecutors routinely bolster the credibility of such a witness — and secure a conviction even when important testimony comes from witnesses whose credibility has been attacked — by corroborating evidence.
It’s hard to imagine more potent or persuasive corroboration than the statements of the sitting vice president of the United States and the president’s press secretary that Flynn told them the same lies he told the FBI — before he was interviewed by the FBI. Their testimony would be admissible to rebut any claim that Flynn did not intend to lie, or that he lied because of FBI misconduct. McCarthy’s statement that the government’s entire case rests on the FBI agents is, therefore, wrong.
McCarthy also dismisses another possible source of corroborating evidence by saying that “[U]nder federal law, Flynn’s statements confessing guilt during his plea proceedings would not be admissible against him at trial if the plea were vacated.” But the law is not so clear. Flynn’s plea agreement specifically noted that (a) he agreed to plead guilty; (b) failure to fulfill any of his obligations under the agreement would constitute a breach of the agreement; and (c) if he breached the agreement his statements while pleading guilty could be admitted against him at a subsequent trial. Case law indicates that provisions in a plea agreement such as these waiving a defendant’s rights can be enforced, so if Flynn withdrew his plea, his admissions before, during and after his guilty plea that he knowingly lied could be introduced against him. I am pretty confident that McCarthy, as a prosecutor, would have argued exactly that.
But McCarthy says that Flynn’s plea agreement was extorted by coercion and fraud, because the government allegedly promised not to prosecute Flynn’s son and withheld that from the court. Perhaps. The prosecutors to date have denied this. If the government had not stepped in and sought to dismiss the case, Judge Sullivan would have held a hearing at which relevant witnesses would testify, potentially including Flynn. And Judge Sullivan might have decided, as McCarthy claims, that Flynn’s plea was coerced.
On the other hand, Judge Sullivan might have noted that Flynn, in writing and in open court, repeatedly stated there were no such promises or coercion, as did his counsel. Judge Sullivan might have believed that Flynn was telling the truth then and denied his request to vacate his plea. Oddly, therefore, Flynn could only manage to exclude from trial his guilty plea that he lied to the FBI by admitting that he lied to the court about the circumstances of that guilty plea, an admission of mendacity that might well have ended up being used against him at trial.
Robert S. Litt is a former federal prosecutor and general counsel of the Office of the Director of National Intelligence. He is now of counsel in Morrison & Foerster’s national security and global risk and crisis management practices. The opinions expressed here are solely his own.